Four talcum powder suits against Johnson & Johnson are set to proceed this month to trial in the New York City Asbestos Litigation court, where plaintiffs attorneys may be able to wield a formidable weapon in the threat of punitive damages, a remedy that had been unavailable for more than two decades, but to which the door was opened last year.
Johnson & Johnson has had mixed success around the country in court fights with plaintiffs who say that using the company’s baby powder caused cancer.
In April, a New Jersey jury awarded $117 million for a plaintiff, of which $80 million was punitive damages. But several months later, the jury in another talc-powder case found for the defense after a half-hour of deliberations.
Though the company and its attorneys may have their work cut out for them defending themselves in the asbestos court in Manhattan, known as the NYCAL court.
The court is routinely criticized by groups like the American Tort Reform Foundation, which casts the court as plaintiff-friendly and routinely includes it on its annual “judicial hellholes” list.
Another group, the Lawsuit Reform Alliance of New York, seized on a recent leadership change at the NYCAL court to portray the court as chaotic. Manhattan Supreme Court Justice Lucy Billings became the court’s coordinating justice last year after Justice Peter Moulton was elevated to the Appellate Division, First Department.
But after six months on the job, Billings was reassigned and Manhattan Supreme Court Justice Manuel Mendez was named coordinating justice.
Mendez presides over talc-powder cases that are moving forward to trial this month in the NYCAL court, where plaintiffs often win multimillion-dollar payouts—just weeks after The New York Times and Reuters published exposes detailing memos sent between Johnson & Johnson executives in which they expressed concerns that the company’s baby powder contains asbestos.
“We look forward to the opportunity of presenting the documents and the inside story to juries in New York City,” said Jerome Block, a partner at Levy Konigsberg who represents plaintiffs with cases going to trial in the asbestos court.
In the trials, Block and other Levy Konigsberg attorneys will face off with Thomas Kurland and John Winter of Patterson Belknap Webb & Tyler.
Around the time that the Times and Reuters ran their stories, Johnson & Johnson reportedly reached a $1.5 million settlement with a Suffolk County woman who alleged that she got mesothelioma from using Johnson & Johnson baby powder.
Johnson & Johnson has maintained that its baby powder is safe and asbestos-free and reports of its settlement with Ann Zoas, the Suffolk County plaintiff, should not be viewed as an indication that that position has changed, according to a statement forwarded by a spokeswoman.
“We do not have any organized program to settle Johnson’s baby powder cases, nor are we planning a settlement program,” the statement reads. “Rather, we will continue to vigorously defend the safety of Johnson’s baby powder in the courtroom.”
Additionally, the trials are beginning several months after the New York Court of Appeals declined to hear arguments in a challenge by the asbestos defense bar against a new case management order for the NYCAL court allowing plaintiffs to move for punitive damages.
There have already been signs that plaintiffs could fare well in efforts to pursue punitive damages.
In one of the cases set to go to trial, Delaware resident Donna Olson, 65, alleges that her use of Johnson & Johnson baby powder and its Shower to Shower product caused her to develop mesothelioma, Mendez denied summary judgment for Johnson & Johnson, upholding Olson’s motion for summary judgment.
The purpose of punitive damages is to punish defendants for “wanton, reckless or malicious” acts and to prevent defendants from acting that way in the future, Mendez said.
Because the plaintiffs argue that Johnson & Johnson put “corporate profits and reputation over the health and safety of consumers,” the judge said, it should be left to a jury to decide punitive damages are warranted.
Punitive damages were taken off the table for asbestos plaintiffs in the NYCAL court in 1996, when then-Manhattan Supreme Court Justice Helen Freedman, the court’s first coordinating justice, deferred all punitive damages claims, a move tantamount to dismissal.
Freedman later explained in an article for the Southwestern University Law Review that there is “no corrective purpose” in hitting companies with punitive damages for wrongs allegedly committed decades ago, oftentimes by predecessor companies, and that punitive damages deplete monies that could otherwise be used to make plaintiffs whole.
But in 2014, Manhattan Supreme Court Justice Sherry Klein Heitler issued an order that lifted the blockade on punitive damages, touching off a legal clash between the asbestos plaintiffs and defense bars.